Breaking with the Notion of Social Contract: Constitutions as Based on Spontaneously Arisen Institutions

The newly emerging subdiscipline of constitutional economics is dominated by adherents to social contract theory although this approach has been severely criticized many a time. In recent years, an alternative approach in which constitutions are conceptualized as conventions has emerged. It is argued here that this alternative approach is a step in the right direction but still does not go far enough. The central hypothesis of the paper is that conceptualizing constitutions as based on spontaneously arisen institutions can help to solve some of the problems left unanswered by the constitutions-as-conventions view.